What to say when getting underway

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If you’re the mediator making a lackluster opening statement, you’re probably doing the process and the parties a disservice. Or, if you’re an attorney at a mediation who pays little attention to the neutral’s opening, or gives little thought to what you might say as an opening, at best you’re diminishing an opportunity to advance your client’s interests, and at worst, you’re sabotaging the process.

The mediator’s opening sets the rules and the tone, and gives the advocates and parties an indication of their roles and how to reap the most benefit from the process. Likewise, carefully-worded opening statements from the lawyers and/or parties can set the stage for settlement by revealing interests and goals.

The Mediator’s Initial Message

Attorney and former circuit court judge William A. Jennaro emphasizes the need for you as the mediator to set a comfortable tone with the opening statement. Keep it brief; summarize your experience rather than listing a litany of accomplishments.

Jennaro, of Cook & Franke S.C. in Milwaukee, also suggests you discuss the “four Cs” of mediation: certainty, containment, control and closure. Certainty is the most important factor of the four, he says, noting, “The only thing that’s certain about the court process is uncertainty.” Containment goes to costs — attorneys fees, experts’ costs, and the parties’ lost productivity and possibly income from pursuing the case. Control puts the matter into the hands of the parties, rather than a judge or jury, while closure puts an end to the legal matter or may prevent it from being filed.

Attorney Russell M. Ware echoes that theme in his typical opening statement, comparing and contrasting litigation versus mediation, and highlighting the benefits of the latter: lower cost, and less delay and stress.

Ware, of SmithAmundsen LLC in Milwaukee, says you should then emphasize your role as a neutral, and the parties’ need to listen and keep an open mind. He then explains his modus operandi; he uses caucusing for the bulk of his mediations (more on that later).

Sometimes parties have been advised by their attorneys about mediation basics, and the opening is slightly redundant, says Ware. “But you can’t rely on that. I’ve been a lawyer for many years, and I’m still sometimes fairly shocked to learn just how little time some attorneys spend with their clients.”

Kathleen Ann Rinehart, of Whyte Hirschboeck Dudek S.C. in Milwaukee, urges mediators to convey which style of mediation they use in an opening statement, so attorneys can adjust their strategies accordingly. In an evaluative session, for example, the roles of the neutral and lawyers will more closely mirror those of litigation, for example. Sometimes there’s an overlap of mediation styles. The mediator’s opening signals where you fall on that continuum.

The Lawyers’ First Words

In the vast majority of Ware’s mediations, the attorneys and parties don’t give an opening. “In my experience and in the types of disputes I mediate — large-claim civil litigation — getting the parties together to negotiate face-to-face increases stress, tension and a sense of confrontation,” he says.

Ware makes exceptions to that rule. You might want to allow it if an attorney tells you, pre-mediation, that the client wants to apologize, for example.

Rinehart says some mediators take a different approach and ask attorneys and/or the parties to give openings if they’re partial to the “blank slate” approach — meaning you emphasize your neutrality, and haven’t formed impressions because you haven’t requested pre-mediation written submissions. This is less common in mediations with complex issues.

Or, maybe you as the medaitor have read the pre-mediation materials, but just want the attorneys to re-frame the issues. Alternatively, you might want to ask for attorneys’ or parties’ opening statements for the limited purpose of providing clarification or more information about a particular area.

Jennaro tends to ask for openings from the attorneys, depending upon the facts underlying the dispute. If you’re the lawyer, you should definitely give some forethought to what you’ll say before you come to the table. “We’re here only because the judge ordered it,” or bluster about burying the other side in court, are ill-advised.

Rather, look at it as an opportunity to show the mediator how you’d like to see the case resolved in realistic terms — especially if an ongoing relationship, post-mediation, is anticipated. The key word, Jennaro says, is “outreach, or letting the other side know that you know you’re not there to prove that you’re right, but rather, to try to settle the case.”

The Role of Emotions

Sometimes the pre-mediation materials suggest the parties’ levels of emotion. If you’re the mediator, you might want to ask for an opening statement from the parties as an additional means of gauging that, says Rinehart.

“Sometimes parties just need to know that they have been heard. Then the mediator needs to defuse that emotion and help shape it into some kind of outcome,” she explains. “When the parties are at the nth degree of hyperbole, the mediator might realize that compromise and settlement aren’t possible. Be truthful in that instance.”

Other times, however, breaking up into caucus at that point, and asking one or both parties about what’s keeping them at that level, can help defuse the emotion. Or, maybe it can be overcome if there are multiple sessions. The first session is short and highly-charged, but in the next session(s), you can identify interests and issues more clearly.

Some lawyers are definitely more at ease sticking to just the legal aspects of their client’s case, such as the guiding statutes, case law, etc. In Rinehart’s opinion, however, lawyers who can do that, and who are willing to get out of their comfort zone by serving as counselors in mediation, bring added value to their clients — and feel more fulfilled in their profession.